The judicial enforceability and legal effects of treaty reservations, understandings, and declarations.

• Author: Chung, Eric
• Position: Introduction into IV. Revisiting the Use of and Concerns over RUDS, p. 170-205

NOTE CONTENTS INTRODUCTION I. BACKGROUND ON THE USE OF AND CONCERNS OVER RUDS II. THE ENFORCEABILITY OF RUDS IN U.S. COURTS A. Valid and Enforceable RUDs in U.S. Courts 1. U.S. Supreme Court Case Law 2. District and Circuit Court Case Law B. Limitations to the Enforceability of RUDs in U.S. Courts III. THE ENFORCEABILITY OF RUDS IN INTERNATIONAL COURTS A. International Court of Justice (ICJ) Jurisprudence B. Other International Court Jurisprudence C. Formal Objections by a State to Another State's RUDs IV. REVISITING THE USE OF AND CONCERNS OVER RUDS A. Recasting the U.S. Perspective and Priorities on RUDs 1. Reorienting from the Domestic Effects of RUDs 2. Reorienting Toward the International Effects of RUDs B. Navigating the Effects of RUDs by Limiting Their Overuse 1. Limiting the Scope of RUDs 2. Limiting the Use of RUDs CONCLUSION APPENDIX A: METHODOLOGY APPENDIX B: CASES REVIEWED INTRODUCTION

In 2014, as the U.S. Senate debated advice and consent to ratify the Convention on the Rights of Persons with Disabilities, the U.S. Supreme Court heard oral arguments in Bond v. United States, (1) a peculiar case involving a domestic application of the International Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction. The Third Circuit had held that the prohibitions of the Convention, and of the accompanying Chemical Weapons Convention Implementation Act of 1998, applied to a domestic defendant who had tried to get revenge for an extramarital affair by spreading small amounts of toxic chemicals on the plaintiff's property. Ultimately reversed by the Court later that year, the case nonetheless alarmed many who expected that the Chemical Weapons Convention could not possibly regulate local criminal activity. That the Disabilities Convention could be similarly construed was not lost on senators during hearings on that Convention. (2)

Bond reignited national interest in reservations, understandings, and declarations, or RUDs, despite not addressing such provisions directly. RUDs are often used by the U.S. Senate in an effort to prevent unintended consequences stemming from treaty ratification. Loosely defined, RUDs are attachments on international treaties made by a ratifying state that alter or clarify the legal effect of treaty provisions. (3) In the United States, they are generally adopted by the Senate when it is giving its advice and consent to a treaty, and they must be included should the President decide to ratify the treaty. RUDs have allowed the United States to ratify treaties without assuming international obligations that might conflict with domestic obligations or otherwise place the government in a difficult legal or political position. (4) Non-self-executing RUDs, (5) including the one involved in Bond, keep international treaties and their standards from having domestic effects, including from being enforceable in domestic courts. (6) For these reasons, the United States has both commonly and increasingly employed RUDs, as have many other states. (7)

The concern that treaties could have unintended domestic effects disquieted senators and other government officials who wondered to what extent they could rely on this practice for limiting the effects of treaties. (8) For example, during a congressional panel on the Disabilities Convention, one senator inquired whether RUDs could be inadequate and unenforceable:

Is there a way, in your opinion, to write RUDs, on the front end of a treaty, that would absolutely ensure that there is no way for this treaty to affect either the federalism issues that we have to deal with or to cause a court to look to the treaty to actually affect the individual lives of citizens here in the country? Is there a way of us coming together and writing RUDs in that way? (9) While Bond fueled these worries, shared by many senators, (10) they are not new. Rather, these concerns have persisted and resurfaced many times over the last few decades as government officials questioned the judicial enforceability of RUDs. (11) Whether RUDs are enforceable raises deep questions regarding the effectiveness and robustness of treatymaking and its future. Depending on their enforceability, the use of RUDs implicates the entire constitutional system of treatymaking and whether and how the United States ratifies treaties. (12) And in turn, if courts will enforce RUDs, should that change how they are drafted? What are the legal effects of using certain RUDs over others?

These questions are of particular import domestically and internationally as treatymaking risks being substituted by alternatives such as congressional-executive agreements. (13) As of now, treaties remain the most frequent, if not exclusive, instruments for agreements in a number of areas, including arms control, dispute settlement, and human rights. (14) With them, RUDs remain central tools in the ratification process. As of June 2016, there were thirty-eight treaties pending before the Senate, including the Disabilities Convention and the United Nations Convention on the Law of the Sea (UNCLOS), (15) and questions over the enforceability and effects of RUDs are paramount to whether these treaties could ultimately be ratified by the United States. Alternately, the invalidation of RUDs could be devastating. Not only would the United States face the type of domestic lawsuits presented in Bond, but it could also be forced into a variety of international disputes and into rescissions of its conditional consent. (16)

But so far, despite their significance, legal scholars and U.S. government officials assessing RUDs have mainly spoken past each other. Senators and presidential administrations have mostly worried about actual enforceability, while legal scholars have instead presumed that RUDs will be enforceable. These scholars often argue over the optimal level of RUD usage, and they primarily debate about whether the practice of RUDs is good law and good policy. These perspectives are important in their own right, but they are informed by and benefit from being joined together. Namely, before exploring the domestic and international effects of RUDs, and how the Senate and other government institutions could determine their optimal use, the scope of RUDs' enforceability needs to be understood. Once that picture is clear, arguments over the proper scope of RUDs can be brought into focus.

This Note embarks on that task. It explores two major questions. First, are RUDs enforceable in courts of law? Second, if RUDs are enforceable, what is their optimal use in the treaty ratification process? To answer these questions, this Note bases both its positive and normative components on a searching analysis of case law discussing the judicial enforceability of RUDs in both U.S. and international courts. (17) The analysis includes forty-seven U.S. cases discussing RUDs as a general category and twenty-six U.S. cases discussing interpretative understandings and declarations, out of approximately 650 reviewed cases. The analysis also includes fourteen cases from international courts, out of approximately 300 reviewed cases, including cases from the International Court of Justice (ICJ), the UNCLOS tribunal and arbitral bodies, the European Court of Human Rights (ECtHR), and the Inter-American Court of Human Rights.

Ultimately, this Note finds that U.S. courts and international courts consistently enforce RUDs, except for international courts reviewing treaties that expressly prohibit their use. These findings should offer solace to those worried about the inadequacies of RUDs, and they provide a compelling reason for revisiting the concerns over their use. This Note argues that based on this case law, the real concerns for the United States and other states should be the legal effects of RUDs on an international order that seeks to encourage genuine and full treaty participation, rather than their ability to mitigate unintended domestic effects. Without a viable threat to the domestic validity of RUDs, this Note reasons that the United States and other states should refrain from overusing RUDs and consequently jeopardizing broader treaty formulation and compliance.

The Note is organized in four major parts. Part I begins by providing background about the use of RUDs and traditional rationales both for and against their use. While some proponents have argued that RUDs allow for more states, including the United States, to participate in the ratification of multilateral treaties, others are more critical and argue that RUDs contribute to superficial ratifications. While legal scholars have documented the history, motivations, scope, and effects of RUDs, particularly as they relate to the Vienna Con-Convention on the Law of Treaties (VCLT), the judicial enforceability of RUDs has not yet been comprehensively examined. The issue of enforceability is nonetheless an important piece of this normative debate because it provides a more realistic picture of what legal effects RUDs could have, if any at all.

Parts II and III take up this question about enforceability. Part II describes how, in U.S. courts, RUDs are nearly always recognized as valid. U.S. courts have only questioned the validity of RUDs when they were not properly communicated to other state parties, when their text did not support an argued interpretation, or when they focused on issues of wholly domestic concern. A few judges have published dissents arguing against the validity of RUDs, but these opinions were not controlling. Part III, in turn, describes how, with few exceptions, international courts also usually defer to RUDs. The ICJ has indicated that it can invalidate a reservation as incompatible with the object and purpose of a treaty pursuant to Article 19 of the VCLT. Yet the ICJ has only invalidated a RUD where the treaty in question expressly prohibited such a RUD. Rules stipulated by a...